Ratio Juris

Publisher:: Wiley
Publication date:: 2021-02-01

ISBN:: 0952-1917

Issue Number

No. 36-4, December 2023

Latest documents

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The Weaker Natural Law Thesis
Natural law theories affirm that it belongs to the nature of law to be apt to promote the common good or do something similar. I defend a weak version of this thesis according to which part of what constitutes something as a nondefective central case of a posited law is that it is apt to promote the common good. Just as the rules of Pictionary require the drawing player to design her drawing to reveal the word in play, the rules of a central case of a legal system require lawmakers to design laws to promote the common good. Therefore, just as a Pictionary drawing that is inapt to reveal the word in play is defective, a central case of a posited law that is inapt to promote the common good is defective.
Against Human Rights Skeptics
The main goal of my text is to generalize Alexy's explicative argument against human rights skeptics in order to minimize the overall room for their escape. This argument tries to show that any attempt to intersubjectively justify the nonexistence of human rights as moral rights necessarily commits the so‐called performative self‐contradiction. Alexy worries that the effect of his argument can be weakened by a group reduction of discourse. But I will argue that this worry is overstated because the price of such a reduction is much higher than Alexy estimates. I will then turn to the issue of moral relativism. I will try to show that the explicative argument, if suitably generalized, can cope even with human rights skeptics who think in terms of moral relativism.
Between Traditionalism and Revisionism: Estlund and Renzo on the Obligation to Obey Orders to Fight in Unjust Wars
David Estlund and Massimo Renzo argue that, given the right background conditions, combatants are obligated to obey orders to fight in unjust wars, a thesis they put forward even as they recognize that this involves committing serious moral wrongs. Their views, then, fall between traditionalism and revisionism in the theory of just war. We argue that both Estlund and Renzo fail to adequately distinguish between binding and nonbinding serious morally wrong orders, that their views are incompatible with their assumed fact‐relative understanding of morality, and that they fail to establish that combatants are obligated to obey orders to fight in unjust wars. We conclude that just as untenable as these two middle‐ground positions is the traditionalist view.
Legal Interpretation, Conceptual Ethics, and Alternative Legal Concepts
When legal theorists ask questions about legal interpretation—such as what it fundamentally is, what it aims at, or how it should work—they often do so in ways closely tethered to existing legal practice. For example: they try to understand how an activity legal actors (purportedly) already engage in should be done better, such as how judges can better learn about the content of the law. In this paper, I discuss a certain kind of “conceptual ethics” approach to thinking about legal interpretation, which is less tethered to existing legal practice (or the existing meaning of core pieces of legal terminology). The approach I explore asks questions about legal interpretation in a way that is tethered to what legal (or “legal‐ish”) concepts people should deploy, as part of arguments on behalf of engaging in legal (or “legal‐ish”) practices different from our current ones. In exploring this approach, I aim to help us better understand the landscape of philosophical issues about legal interpretation, including parts of it that I think have been underexplored.
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The Rule of Law, Comprehensive Doctrines, Overlapping Consensus, and the Future of Europe
For more than a decade now a profound rule‐of‐law crisis has gripped the European Union, and while the fight for the rule of law has topped not only the academic but also the judicial and political agenda, the results have been disappointingly meagre. This article argues that the main reason for that should be sought in a political strategic move of justifying the assaults on the rule of law by resorting to an “illiberal democracy.” This premeditated political narrative shift has unleashed onto the political sphere and onto public discourse at large comprehensive doctrines which had hitherto been left dormant thanks to an overlapping consensus on the rule of law as a central building block of the political conception of justice à la Rawls. Once this overlapping consensus was broken, the rule of law itself lost its neutral character as a referee on the right among the many conceptions of the good, itself becoming part of the highly politicized power play for dominance among irreconcilable—liberal and illiberal—comprehensive doctrines. The overlapping consensus in the EU is thus broken, but there are no conceptual reasons inherent to the rule of law itself for which it could not be rebuilt in the future.
In Defense of the Standard Picture: Overcoming Death by a Thousand Cuts
In a previous article, I defended the standard picture of law (or SP), so labeled by its foremost critic, Mark Greenberg. In that article, I addressed Greenberg's root‐and‐branch critique of the SP and, to a much lesser extent, a related critique by Scott Hershovitz. But the Greenberg and Hershovitz frontal attacks on the SP are not its only threats. Some theorists, while not attacking the SP directly, give accounts of law that the SP cannot accommodate. Those theorists will be challenged here, because if they are correct, the SP is not a tenable account of law.